Tribunal decisions

The decision

Upper Tribunal
Immigration and Asylum Chamber Appeal Number: IA/35732/2014

THE IMMIGRATION ACTS

Before

UPPER TRIBUNAL JUDGE KAMARA

BETWEEN

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

MR ASSAD HUSSAIN
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:

For the Appellant: Ms Z Ahmad, Senior Home Office Presenting Officer
For the Respondent: Mr T Gaisford, counsel instructed by M-R Solicitors

DETERMINATION AND REASONS

1. This is an appeal against the decision, promulgated on 16 June 2015, of First-tier Tribunal Judge Stokes.

2. Permission to appeal was granted by First-tier Tribunal Judge Pooler on 9 September 2015.

Background

3. The respondent to this appeal sought a residence card as confirmation of a right to reside in the United Kingdom on the basis of being the extended family member of Assad Hussain, an EEA national.

4. In refusing the above-mentioned application, the Secretary of State did not accept that the EEA sponsor was exercising treaty rights nor that the respondent was either residing with or dependent on the EEA sponsor prior to or following his entry to the United Kingdom.

5. Following the hearing before Judge Stokes, the judge accepted that the sponsor was a qualified person; that the respondent was dependent upon the sponsor prior to his entry to the United Kingdom and that he was presently living with and dependent upon the sponsor. She concluded that the respondent's decision was not in accordance with the law and proceeded to allow the appeal under the 2006 Regulations.

6. The grounds of application argued that the judge erred in allowing the appeal of an extended family member outright rather than remitting the matter to the Secretary of State. Reliance was placed on Ihemedu (OFMs - meaning) Nigeria [2011] UKUT 00340 (IAC).

7. Permission to appeal was granted on the basis sought.

8. Those representing the respondent did not lodge a Rule 24 response.

9. At the hearing before me, Ms Ahmed simply argued that the judge had no jurisdiction to consider the appeal in view of in Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC).

10. Mr Gaisford questioned the scope of Sala with reference to [85] of the determination, stating that there was a difference of opinion regarding jurisdiction, albeit the Secretary of State had amended her guidance to state that there is no right of appeal. He asked me to note that there were no disputed findings of fact in relation to the judge's findings and the limited scope of the Secretary of State's grounds amounted to a concession that there was no challenge to those findings. Mr Gainsford argued, with regard to the issue upon which permission was granted, that of discretion, that the judge's misdirection was immaterial because there was no challenge to her findings.

11. In reply, Ms Ahmad relied on Virk & others [2013] EWCA Civ 652 at [23], as follows; "Statutory jurisdiction cannot be conferred by waiver or agreement; or by the failure of the parties or the tribunal to be alive to the point." She confirmed that the Secretary of State did not challenge the judge's findings of fact and suggested that it was open to the respondent to supply the judge's decision to the Secretary of State in support of a further application for a residence card.

12. At the conclusion of the hearing, I announced that I had no jurisdiction to consider this appeal owing to Sala, where the following was decided; "There is no statutory right of appeal against the decision of the Secretary of State not to grant a Residence Card to a person claiming to be an Extended Family Member. "

Conclusions

I have no jurisdiction to consider this appeal.

No application for anonymity was made and I saw no reason to make such a direction.

Signed: Date: 4 October 2016

Upper Tribunal Judge Kamara